Tinubu and Atiku: Why the Jefferson case exposes the fallacy of treating civil forfeiture as a criminal conviction, By Kayode Oladele

Add us on Google

If allegations examined during an investigation involving Atiku cannot be converted into a criminal conviction against Atiku, an in rem civil forfeiture proceeding cannot logically be converted into a criminal conviction against Tinubu. In each case, the responsible legal inquiry must be the same: Was the individual criminally charged? Was he prosecuted? Was he tried? Was a judgment of criminal conviction entered against him? Otherwise, political rhetoric cannot substitute for those questions.

The continuing attempt by some political opponents of President Bola Ahmed Tinubu to portray the 1993 civil forfeiture proceedings in the United States as proof that he was prosecuted and convicted of a criminal offence is, in my view, legally frivolous and morally unscrupulous.

Join the Premium Times WhatsApp Community For Quick Access To News and Happenings Around You.

Open in WhatsApp

It is also particularly difficult to reconcile with the position often taken by the same political actors when discussing former Vice President Atiku Abubakar and the criminal investigation and prosecution of former United States Congressman William Jefferson.

As a lawyer trained, practising in both the United States and Nigeria, I believe that political disagreements, however intense, should not be allowed to obliterate settled distinctions between allegation, investigation, civil proceedings, criminal prosecution, and criminal conviction. These expressions are not interchangeable. Each has a distinct legal meaning and carries different consequences.

Although the relevant documents concerning President Tinubu pre-date the introduction and widespread use of the US federal courts’ PACER electronic filing system by many years, I have reviewed the court records and dockets presently available.

Based on that review, I have found no record showing that President Tinubu was criminally prosecuted, tried or convicted of an offence in the United States. What exists and what has repeatedly been relied upon by his opponents, is the 1993 forfeiture proceeding in the United States District Court for the Northern District of Illinois. That distinction is fundamental.

The proceeding was an in rem civil forfeiture action. An in rem proceeding is directed against property, rather than being a criminal prosecution against an individual. This explains the peculiar manner in which American forfeiture cases are styled, with the property itself appearing as the defendant.

Such a proceeding may undoubtedly involve serious allegations concerning the provenance or use of property, but it does not, by that fact alone, constitute the criminal prosecution or conviction of the property’s owner.

Stay Ahead with Premium Times

Follow us on Google News and never miss breaking stories, investigations, and in-depth reporting.

Add as a preferred source on Google

Under American law, criminal liability is personal. A person accused of an offence is entitled to the constitutional and procedural safeguards attaching to a criminal prosecution, including the requirement that the prosecution must establish guilt beyond reasonable doubt.

A civil forfeiture proceeding operates under a different legal framework and serves a different purpose. It is therefore legally erroneous to take the outcome of an in rem civil proceeding and simply recharacterise it as a criminal conviction of an individual who was never charged, tried or convicted in that proceeding.

This distinction has long been recognised in American jurisprudence. In United States v. Ursery, 518 U.S. 267 (1996), the United States Supreme Court reaffirmed the distinction between civil in rem forfeitures and criminal punishment, holding in the circumstances before it that such forfeitures were neither punishment nor criminal for purposes of the Double Jeopardy Clause.

Earlier authorities, including Various Items of Personal Property v. United States, 282 U.S. 577 (1931), similarly recognised the historically distinct character of in rem forfeiture proceedings. These authorities do not mean that forfeiture is legally insignificant. They mean something more precise and relevant to the present debate: a civil forfeiture proceeding cannot simply be renamed a criminal prosecution or conviction because doing so suits a political narrative.

The inconsistency becomes even more apparent when the Tinubu controversy is compared with the United States investigation that eventually resulted in the prosecution and conviction of former Congressman William Jefferson.

Jefferson was investigated by United States federal authorities, criminally charged, prosecuted and convicted. Former Vice President, Alhaji Abubakar Atiku’s name featured very prominently in connection with certain aspects of the investigation, including allegations concerning a proposed Nigerian telecommunications transaction. But Atiku was not the defendant convicted in Jefferson’s criminal case. Jefferson was. This distinction has always mattered and rightly so.

Those who defend Atiku against suggestions of criminal culpability arising from the Jefferson affair readily point out that being mentioned in an investigation, or being connected with facts examined by investigators, is not the same thing as being prosecuted and convicted. They are correct. No responsible lawyer should describe Atiku as having been convicted merely because allegations involving him, no matter how egregious, arose in an investigation that culminated in the prosecution and conviction of another person.

However, that same elementary principle of law cannot suddenly disappear when the person under political attack is Bola Ahmed Tinubu.

Indeed, Tinubu’s opponents, including Atiku himself, know how to distinguish between Jefferson and Atiku when the Jefferson criminal investigation is discussed. They can readily say that Jefferson was prosecuted and convicted, while Atiku was not convicted. They would understandably object to any attempt to transfer Jefferson’s conviction to Atiku merely by association.

The obvious question therefore arises: Why should a different legal standard apply to Tinubu?

If allegations examined during an investigation involving Atiku cannot be converted into a criminal conviction against Atiku, an in rem civil forfeiture proceeding cannot logically be converted into a criminal conviction against Tinubu. In each case, the responsible legal inquiry must be the same: Was the individual criminally charged? Was he prosecuted? Was he tried? Was a judgment of criminal conviction entered against him? Otherwise, political rhetoric cannot substitute for those questions.

The comparison is actually instructive because it demonstrates why legal terminology matters. Jefferson’s case provides an example of what a federal criminal prosecution looks like: investigation, indictment, criminal charges, trial and conviction. Whatever political conclusions anyone wishes to draw from the matters involving Atiku, the distinction remains that Jefferson was prosecuted and convicted, whereas Atiku, though investigated, was not convicted in that case.

In Tinubu’s case, the proceeding habitually relied upon by his opponents was civil and in rem. To describe its disposition as Tinubu’s “criminal conviction” is therefore to attribute to the proceeding a legal consequence that it did not produce.

In a democracy, citizens are entitled to scrutinise the records of their leaders. Political opponents are equally entitled to criticise them. Nonetheless, criticism must be distinguished from a statement of legal fact. One may debate what allegations mean politically; one cannot manufacture a criminal conviction where the judicial record does not contain one.

The principle is simple but important: allegation is not conviction; investigation is not prosecution; association is not guilt; and civil forfeiture is not, without more, a criminal conviction of the person whose property or interests are implicated.

There is also a broader constitutional principle at stake. The presumption of innocence is not a privilege reserved for people with whom we agree politically. The Supreme Court of the United States famously observed in Coffin v. United States, 156 U.S. 432 (1895), that the presumption of innocence in favour of an accused is an undoubted principle of criminal law.

The Nigerian Constitution similarly guarantees the presumption of innocence to anyone charged with a criminal offence until proved guilty. Political discourse should not casually invert that principle by declaring a person criminally convicted where no such judgment exists.

There is therefore an unavoidable inconsistency in arguing, on the one hand, that Atiku cannot be branded a convicted criminal because Jefferson was the person actually prosecuted and convicted, while arguing, on the other hand, that Tinubu should be treated as a convicted criminal on account of a civil forfeiture proceeding in which he was not criminally prosecuted or convicted.

The law cannot operate on two standards: one for political friends and another for political opponents.

If we accept, correctly, that Atiku did not become a convicted criminal merely because his name arose in circumstances investigated in connection with Jefferson, then elementary fairness demands that we also acknowledge that an in rem civil forfeiture involving property associated with Tinubu did not transform itself into a criminal investigation and or conviction against Tinubu.

There is a further reason for caution. Words such as “criminal,” “convict” and “conviction” carry precise meanings, as well as grave reputational consequences. To say that somebody was criminally convicted is not merely to express an opinion about his conduct; it is ordinarily an assertion about an identifiable judicial event. There should therefore be a criminal complaint, trial and a judgment of conviction capable of being identified: the court, the charge, the criminal case and the judgment.

Where is that indictment orcomplaint and conviction against President Tinubu in the United States?

That is the question those who persistently describe him as having been investigated, tried and convicted should answer. It is not sufficient to point again to civil forfeiture documents. Those documents establish the existence and disposition of a forfeiture proceeding; they do not become a criminal judgment simply through repetition on political platforms or social media.

This does not require anyone to support Tinubu politically. Neither does it prevent legitimate scrutiny of the underlying allegations. It simply requires intellectual consistency and fidelity to the law.

Ultimately, the Atiku–Jefferson comparison provides a useful test of that consistency. Jefferson was prosecuted and convicted. Atiku was not convicted in Jefferson’s case. The distinction is recognised because criminal responsibility cannot simply be transferred from the person convicted to another individual whose name arose during an investigation.

By the same reasoning, whatever political interpretation anyone chooses to place upon the 1993 forfeiture proceedings, President Bola Ahmed Tinubu was not thereby criminally convicted. A civil judgment cannot be converted into a criminal conviction by political rhetoric.

The law must mean the same thing regardless of whose name appears on the political banner. If the distinction between investigation and conviction protects Atiku from being described as convicted in the Jefferson affair, the distinction between civil forfeiture and criminal conviction must equally be respected in Tinubu’s case.

Anything less is not legal analysis. It is the selective application of legal terminology for political purposes.

Kayode Oladele is a Nigerian-US attorney, former Member of the House of Representatives and former Chairman of the House Committee on Financial Crimes.